| Fiji Islands - Lovolailai v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL APPEAL No. 37 of 1996
BETWEEN:
SOSICENI LOVOLAILAI
Appellant
AND:
THE STATE
Respondent
Appellant in Person
Miss L. Laveti for the Respondent
JUDGMENT
On 9 August 1996 the Appellant was convicted after trial of one offence of rape. He was sentenced to five years imprisonment. He now
appeals against conviction.
The central grounds of appeal were first, that the Resident Magistrate (M. Fernando Esq.) erred in accepting the evidence of the complainant,
the appellant's niece aged 11, rather than that of the appellant and secondly, that the complainant's evidence was not corroborated.
The first ground may be shortly taken. An appellate Court is always slow to interfere with findings of fact reached in a lower court
without misdirection (see Chandar Pal v Reginam 33 FLR 52) because of the advantage enjoyed by the lower court which saw and heard the witnesses. In the present case the Resident Magistrate
judged the complainant to be a witness of truth whose evidence was consistent with that of her grandmother and the medical report.
There is nothing in the record to show that the Resident Magistrate erred in reaching this conclusion.
The second ground of appeal has more substances since it is evident that the Resident Magistrate thought that the mere fact that the
complainant was not virgo intacta could be corroborative.
The need for corroboration in cases of sexual offences was explained by the Fiji Court of Appeal in Ilaitia Koroiciri v Reginam (FCA 43/79, FCA REPS 79/169) while, as recently pointed out by Fatiaki J in Bonefacio Siga v the State (Lab. Cr. App. 29/96) the precise nature of the corroborative evidence required was defined in James v R ((1971) 55 Cr. App R.299) by Viscount Dilhorne in the following terms:-
"where the charge is rape, the corroborative evidence must confirm in some material particular that intercourse has taken place
and that it has taken place without the woman's consent and also that the defendant was the man who committed the crime."
This formulation is similar to that found in Ram Kewal v Reginam (9FLR 156) where Hammett A/CJ, dealing with the evidence of a young girl emphasised that the evidence had to be corroborative:-
i) of the allegation that the assault had taken place;
ii) of the identity of the appellant as the perpetrator of the alleged assault;
iii) of the (actus reus) alleged by the complainant.
In the absence of evidence both that the complainant was virgo intacta before the alleged rape and that she did not have sexual intercourse after the alleged rape, evidence that she was not virgo intacta when medically examined some time after the alleged rape could not possibly be corroborative.
On pages 51 and 53 of the record an English translation of the cautioned interview with the appellant is set out. This interview includes
detailed admissions of the central allegations against the appellant. At the trial the appellant's sworn evidence was that he had
made the confessions which were untrue because the police had threatened him. The Resident Magistrate rejected the accused's contention
that he had been threatened. He admitted the cautioned interview and in my view he was perfectly entitled to do so.
Although the Resident Magistrate misdirected himself in treating the complainant's medical condition as being corroborative there
was ample corroboration in the appellant's confession to the police. In these circumstances the appellant was properly convicted
and the appeal is accordingly dismissed.
M.D. Scott
JUDGE
22nd day of October 1996.
capp0037.96
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